The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may have.
You may recall that about three weeks ago, the federal government enacted the Families First Coronavirus Response Act (“FFCRA”), which provides job-protected paid leave to employees affected by COVID-19. The law is now in effect and the United States Department of Labor issued a temporary rule on April 1 that clarifies a number of unanswered questions about the law.
Below please find responses to Frequently Asked Questions that address business leaders’ concerns about how to deal with the complex web of COVID-19-related leave issues. Please note that business situations vary and the answers for your situation are often fact-specific. We hope the following FAQs address questions that are relevant and pressing to your business, but they are only general legal information.
1- What’s the FFRCA?
As a quick reminder, the Act provides a job-protected, paid leave of absence for the employee’s own COVID-19 condition (based on medical recommendations or an order of quarantine), care of someone who has or is suspected to have COVID-19; or care of a child whose school or childcare provider has closed as a result of COVID-19.
More information about the leave entitlements can be found in our prior posts, and on our COVID-19 resource page, which can be found here.
2- My business was ordered to close by the government because we are a non-essential business. Does that mean all my employees get to take a leave of absence under the federal law?
No. The inquiry needs to focus on whether the employee him- or herself would be able to work “but for” a COVID-19-related reason. In other words, the employee must be otherwise not just able to work or telework, but must be actually working. Where the government requires a business to shut down, if the employee is not able to work (say, because the job requires an in-person presence), the employee’s inability to work is caused by the business being closed, not the employee’s own COVID-19-related situation.
3- I laid off several workers 2 weeks ago. Do I have to pay them for leave if they have COVID-19?
No. As discussed above, to be eligible under these laws, the COVID-19-related reason needs to be the cause of the employee’s inability to work. In this example, the layoff (lack of work) is the reason the employee is not able to work. In addition, if an employee is laid off, they are no longer employed by your business and no longer entitled to leave benefits in any event.
4- My employee’s child is out of school for the next few weeks. The employee has been able to work remotely by sharing childcare with her spouse, but her spouse was called away to work as an emergency responder. If the employee can work fewer than her normal hours but is still able to work, does she get paid leave?
It depends on what is mutually agreed upon. The DOL rules suggest that intermittent leave can be arranged if the employee and the company agree. The parties are encouraged to be flexible about finding practical solutions to intermittent leave questions. Again, questions of intermittent leave, particularly for employees doing telework, are complex and should be carefully considered with the advice of counsel.
5- My employee has been teleworking for a few weeks and now came down with COVID-19. Does she get leave?
It depends. If the employee’s illness prevents her from working, she could be eligible for leave for the amount of hours she had been teleworking if she can no longer work those hours. If she is asymptomatic and willing and able to work, then possibly not, although a decision to deny leave to someone who has COVID-19 is highly risky, so counsel should be consulted prior to taking action. In any event, the employee and employer should maintain open the lines of communication, as the virus takes it toll on different people in different ways and the situation is dynamic.
6- My employee is having COVID-type symptoms. Can I require her to confirm a positive test result confirmed by a doctor’s note before paying for her leave?
No, you do not need to required a positive test result. However, when someone seeks leave for their own COVID-19 related reason, the employer must provide the name of the government entity that issued the Quarantine or Isolation Order or the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID–19. In addition to some basic information (name, dates of leave), employees need to provide a written statement confirming the reason they are seeking leave, and that they are unable to work due to this reason. For other types of leaves, employees must submit other information. As a reminder, businesses can obtain tax credits for these paid leave payments, so it’s particularly important to ensure the documentation meets the IRS’s requirements to ensure eligibility for those tax credits.
7- I recently cut pay for all my staff. Can I pay an employee on leave at that new, lowered rate?
No. The payment for FFCRA leave is based on a “lookback” approach: this is calculated using an average of hours and pay over the 6 months prior to the leave being taken. This should be undertaken carefully to ensure accuracy, particularly for employees who have a complex compensation structure (such as commissions).
8- My business is small and we’re really suffering here. Is there any relief?
Small businesses (under 50 employees) can avoid providing the childcare-related leave, if any of the below factors are met:
- providing leave would economically threaten the business’ ability to operate;
- the employee has a specialized role in the business and the absence would threaten the Company’s financial health or operations; or
- the employer can’t find enough replacement workers to cover for the employee requesting an absence.
This analysis should be undertaken closely with counsel and documented appropriately.
9- I believe my business is exempt from the leave requirements under the federal law; can I just deny the leave?
Not automatically. Each leave situation should be carefully analyzed. While there are exclusions to the federal leave law for employees and businesses working on combatting COVID-19 (primarily but not exclusively in healthcare), many states have enacted their own laws to address issues surrounding this pandemic, and may not have the same exclusions as the federal law. In addition, the pre-existing legal framework (such as the regular FMLA, state family leave laws, and disability protections) could also apply to a given leave situation. If after a detailed legal analysis, employers believe they have grounds to deny a leave of absence (or refuse to pay for the leave), they should document why they believe a particular leave of absence is not covered.
In Conclusion: Tread Carefully
The stakes here are high, with the potential for significant liability (unpaid wages, liquidated damages, attorneys’ fees and costs), so these issues should be carefully analyzed with experienced counsel. If you have any specific questions or concerns, please feel free to reach out to us.